Rodriguez v. Sessions, 17-1568

• Decision Date: 22 November 2017
• Docket Number: No. 17-1568,17-1568
• Citation: 876 F.3d 280
• Parties: Gabriela RODRIGUEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

876 F.3d 280

Gabriela RODRIGUEZ, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.

No. 17-1568

United States Court of Appeals, Seventh Circuit.

Argued October 23, 2017

Decided November 22, 2017

Isuf Kola, Attorney, Kola & Associates, Ltd, Glen Ellyn, IL, for Petitioner.

OIL, Jonathan A. Robbins, Attorneys, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Bauer and Hamilton, Circuit Judges, and Darrow, District Judge.^*

Darrow, District Judge.

This case presents a question closely connected with one this Court recently decided: when does a conviction for violating a protective order make a person ineligible for the cancellation of removal proceedings?

See Garcia–Hernandez v. Boente , 847 F.3d 869 (7th Cir. 2017).

Gabriela Rodriguez was placed in removal proceedings—that is, she was scheduled to be deported—some 10 years after she entered this country from Mexico without inspection by United States authorities. She sought cancellation of her removal on the ground that it would cause her five dependent children, whom she raises alone, exceptional hardship. See 8 U.S.C. § 1229b(b)(1). One of her children is a cancer

survivor who requires routine doctor visits to monitor his remission. The immigration judge who handled Rodriguez's case decided that she was statutorily ineligible for cancellation because she had been convicted of violating an order of protection in 2001. See 8 U.S.C. § 1227(a)(2)(E)(ii). The Board of Immigration Appeals affirmed this decision. Because Rodriguez is ineligible for cancellation, we agree, and deny the petition for review.

I. Factual and Procedural Background

Rodriguez entered the United States without inspection on January 11, 1999. On February 2, 2000, her boyfriend, Manuel Ramirez, sought a restraining order against her in Dodge County, Wisconsin, claiming that he feared for his safety after episodes of domestic violence. The circuit court granted his request and issued a temporary restraining order pending a hearing. In a one-page form order, the court indicated that Ramirez was in imminent danger of physical harm, and ordered that Rodriguez avoid his residence and any personal contact with him.

Rodriguez testified before the immigration judge that because she had nowhere else to go, and because she had two small children and all her belongings in the apartment she had been sharing with Ramirez, she did not leave. She was charged by criminal complaint on February 14, 2000, with knowingly violating a temporary restraining order. Wis. Stat. § 813.12(8)(a). The complainant, a police officer, indicated that Ramirez had met with him on February 5 and said that Rodriguez refused to leave the apartment. Ramirez also told the officer that he and Rodriguez had run into each other on the street and had an argument. Rodriguez pleaded no contest to the charge on April 6, 2001, and to a charge of misdemeanor bail jumping, Wis. Stat. § 946.49(1)(a), which is not at issue in this appeal.

The Department of Homeland Security charged Rodriguez with removability and began removal proceedings against her on October 26, 2009, by filing a Notice to Appear in immigration court. 8 U.S.C. § 1182(a)(6)(A)(i). Rodriguez conceded the factual allegations contained in the Notice, but indicated that she would seek cancellation of her removal.

The Attorney General may cancel the removal of an unlawfully admitted alien, or adjust her status to a permanent resident, if she has met all of several conditions: if she has been continuously present in the United States for 10 years, 8 U.S.C. § 1229b(b)(1)(A) ; "has been a person of good moral character" during that time, id. § 1229b(b)(1)(B) ; establishes that removal would cause an "exceptional and extremely unusual hardship" to her child, id. § 1229b(b)(1)(D) ; and, relevant here, has not been convicted of certain enumerated offenses, id. § 1229b(b)(1)(C), including violation of a protection order, id. § 1227(a)(2)(E)(ii). Specifically, an alien is not eligible for cancellation if, after she has been enjoined under a protection order, a "court determines [that she] has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued ...." Id.

Although the government made more than one argument opposing cancellation before the immigration judge, the judge decided that Rodriguez's conviction for violating the temporary restraining order in Wisconsin settled the matter, and rested her decision on that basis alone. The immigration judge thought that because Wisconsin law requires a judge to consider the danger posed to a victim and any pattern of abusive conduct by the perpetrator, Wis. Stat. § 813.12(3)(a)(2)(aj), a misdemeanor conviction for having violated such an order is "categorically a removable offense," Imm. J. Order 3, Pet'r Br. App. B. Rodriguez appealed to the Board of Immigration Appeals (BIA), which conducted its own review and dismissed the appeal pursuant to a written decision. BIA Decision, Pet'r Br. App. A. The BIA decided that "the ‘avoidance of residence’ provision is a portion of the TRO related to protecting against future threats of violence, harassment, or bodily injury," id. at 2, and that since the conviction documents show Rodriguez violated that portion, she was ineligible for cancellation.

Rodriguez appealed the dismissal. We have jurisdiction to consider the appeal, as it presents a question of law. 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review that opinion, rather than the immigration judge's. Sanchez v. Holder , 757 F.3d 712, 717 (7th Cir. 2014). We review questions of law de novo. Karroumeh v. Lynch , 820 F.3d 890, 896 (7th Cir. 2016). Insofar as the BIA carefully and consistently interprets ambiguous immigration statutes, we apply the principles of deference enunciated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Mata–Guerrero v. Holder , 627 F.3d 256, 259 (7th Cir. 2010).

II. Discussion

At moments, the immigration judge, the BIA, and Rodriguez all have seemed to rely on a determination about whether Wisconsin's restraining order statute categorically protects against threats of violence, harassment, or bodily injury. See Pet'r Br. 26 ("The Board failed to recognize that the overall purpose of the Wisconsin Statute does not necessarily protect solely against ‘credible threats of violence, repeated harassment, or bodily injury.’ "); BIA Decision 2 ("We agree with the Immigration Judge that the purpose of Wis. Stat. § 813.12(8)(a)... is to protect the victim from future threats of violence, harassment, or injury, irrespective of what behavior triggered the violation."). This is to say that the immigration judge, the BIA, and Rodriguez perform, at least in part, a categorical analysis of the statute, which, as we explained in Garcia–Hernandez , is neither necessary nor appropriate in cases that, like this one, concern 8 U.S.C. § 1227(a)(2)(E)(ii). We therefore think it useful to explain again the holding and reasoning of Garcia–Hernandez .

The Supreme Court has developed an interpretive method, commonly called the categorical approach, to determine when a person's prior criminal conviction can be counted against the person for purposes of statutory sentencing enhancements or determinations of removability. Under the categorical approach, courts determine whether a person has sustained a conviction for a particular kind of crime by looking to whether the statute of conviction matches the "generic" version of the offense, or, rather, is broader, and could therefore be committed in a way that would not involve commission of the generic offense. See Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The categorical approach thus directs a court's attention to the statute of conviction, rather than to any other information the court has about what conduct a person may have actually engaged in to warrant (or not) a criminal conviction. See Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2287–88, 186 L.Ed.2d 438 (2013). The Court has explained that this approach has three core virtues. First, it respects the text of statutes that are enhanced or triggered, on their own terms, by convictions under criminal statutes, rather than by participation in any particular prohibited conduct. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2252, 195 L.Ed.2d 604 (2016). Second, it respects the requirement of the Sixth Amendment that only a jury may find facts that increase a maximum penalty. Id. ; see Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). And third, it avoids unfairness to defendants by directing the focus of later courts only to those elements that the government was required to prove beyond a reasonable doubt in order to secure a conviction, and which therefore the defendant had incentive to contest at the earlier proceeding. Mathis , 136 S.Ct. at 2253.

As Garcia–Hernandez recognized, the main reason to apply the categorical approach springs from the first of the considerations the Court identified in Mathis —that the statutory text itself invokes a "conviction." See Garcia–Hernandez , 847 F.3d at 871 ("The categorical and modified categorical approaches are triggered by statutes that spell out consequences for criminal convictions .") (citing Moncrieffe v. Holder , 569 U.S. 184, 190–91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ). When a statute does not make itself contingent on a conviction, the categorical approach is unnecessary, and courts should respond to what the statute does depend on. While many of the conditions that may make an alien deportable, or ineligible for...